The US strike against Syria was unlawful

Published: April 21, 2017
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The writer is associate professor in law at the University of Hull, UK and barrister, Lincoln’s Inn, London

The writer is associate professor in law at the University of Hull, UK and barrister, Lincoln’s Inn, London

The law on the use of force against another state is very clear. The UN Charter refrains member states from the threat or use of force against the territorial integrity or political independence of another state. Only the Security Council can authorise the use of force under certain conditions.

First, it shall determine the existence of threat to the peace, breach of the peace or an act of aggression. Second, it may decide to take measures not involving the use of force to give effect to its decision for restoring international peace and security. Third, if the Security Council considers that the non-forcible measures are inadequate or have proved to be inadequate, it ‘may’ under Article 42 of the Charter ‘take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security’. The Charter also takes into account situations where a state is under attack or an armed attack is imminent. Article 51 allows states to act in self-defence in such situations using proportionate force but states have this right ‘until’ the Security Council has taken measures necessary to maintain international peace and security and the victim state is required to ‘immediately’ report measures taken in self-defence to the Security Council.

The use of force against another state, on humanitarian grounds, is not an established principle of international law yet. There is much academic discussion on the notion of responsibility to protect but minimal state practice. On 17 March 2011, the Security Council authorised the use of force against the government of Colonel Muammar Qadhafi in Libya to protect civilians in Benghazi. Five members of the Security Council abstained (Brazil, China, Germany, Indian and Russia) from Resolution 1973.

This resolution was used as a pretext for regime change when Qadhafi was overthrown in August 2011 and killed in October 2011. Mindful of the misuse of Resolution 1973, China and Russia double vetoed a resolution calling for sanctions against Syria in October 2011 followed by another use of double veto against a resolution referring war crimes and crimes against humanity committed in Syria to the International Criminal Court in May 2014.

In August 2013, the British attorney general advised the government that military action can be taken against Syria, on humanitarian grounds, but the UK Parliament voted against it.

The United States launched unilateral air strikes against Syria. The US President, Donald Trump, gave two reasons for the attack: chemical weapons attack on innocent civilians and that it is in the ‘vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons’. The UN did not authorise the use of force. Syria has not attacked the US either. ‘Vital national security interest’ has never been a ground for the use of force in self-defence. The US did not succeed with this argument at the International Court of Justice in 2003 in a case related to its attacks on Iranian Oil Platforms in 1987 and 1988. It seems that the US is implicitly relying on humanitarian grounds but this has never been a generally accepted ground for the use of force, especially unilaterally.

A separate but related point to bear in mind is that there is no independent investigation to determine who used chemical weapons. Syria denies it. Russia blames the rebels. The US Department of Defence claimed that ‘the US intelligence community assesses that aircraft from Shayrat conducted the April 4 chemical weapons attack’. False claims of possessing chemical weapons were made against Iraq in 2003. Given that there is no independent evidence as to who is responsible for the attack and that the attack has neither been authorised by the UN nor can it be viewed as acting in self-defence as Syria did not attack the US, the military strike against Syria is unlawful. The US has committed the crime of aggression under customary law and the Rome Statute of the International Criminal Court 1998.

A persuasive argument for intervention on humanitarian grounds may become possible if the US and Russia can resolve their differences and use the platform of the UN Security Council. Depending on the outcome of an independent investigation, a case for intervention may be made against the Syrian government or the rebels or both as the crimes committed in Syria are an affront to humanity. But any intervention must be authorised by the UN Security Council.

Published in The Express Tribune, April 21st, 2017.

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Reader Comments (7)

  • Parvez
    Apr 21, 2017 - 1:32PM

    Agree ….. now let us know who will bring the guilty party ( the US according to you ) to justice ? Not theoretically but in real terms. Recommend

  • Walid Ayubi
    Apr 21, 2017 - 3:33PM

    Ask any Syrian refugee how he appreciates the cold elegance of international law described in this article and you are likely to get a reality check, if not embarrassed by the legal sophistry that is of no use to millions of those tragic victims.
    And how does international law help when mechanisms (established under the authority of the Security Council and by the agreement of those same countries now crying foul at the air strikes), e.g. the UN Joint Investigative Mechanism, clearly establish that Syrian army units were responsible for carrying out chemical weapons attacks against civilians? Then there are those who issued fatwas against weapons of mass destruction and continue to mourn their own victims who fell to Sadaam’s chemical weapons. Today they not only protect the regime but sponsor militias from abroad to partake in the massacres for no other reason than sectarian. There is hypocrisy piled upon hypocrisy in Syria. It is easy to get swayed by such legal fastidiousness and be blinded to the true nature of one of the greatest human tragedies that have unfolded in that unfortunate land. Recommend

  • Rex Minor
    Apr 21, 2017 - 3:49PM

    The UN Charter refrains member states from the threat or use of force against the territorial integrity or political independence of another state.

    But it would seem that this law does not apply to the permanent members of the security council members. America stands as a serial offender without any consequence. For the world order the UNO requires structural reforms since such actions only feed more terrorism and the repeat of the world war with modern weaponry will bring an end of the world

    Rex MinorRecommend

  • curious2
    Apr 21, 2017 - 10:01PM

    When two members of the UN Security Council cynically protect Dictator who uses chemical weapons on his own people it pretty much trashes the “legality” argument. Russia veto a simple resolution which condemned chemical attacks and encouraged the Syrian govt to help in the investigation … that’s the real crime. Recommend

  • Sexton
    Apr 21, 2017 - 10:35PM

    The world is becoming scarier and scarier by the day. The US has not shown any proof that would be admissible in court regarding Syrian military defense forces using chemical weapons. However, we do know that the US dropped 26,171 bombs in 2016 mostly on Iraq and Syria. Can we presume that many civilians and little children were killed by them. It sound as if the US has double standards. We know that the US regularly uses false flag excuses to attack innocent countries. We also know that Madeleine Albright said that the deaths of 500,000 children in Iraq, due to US activities, was “worth it”. Recommend

  • eddied
    Apr 22, 2017 - 11:49PM

    the butcher of Damascus used poison gas on civilians…the USA said that is unacceptable and sent rockets to removes some of the planes Assad used to drop these chemicals on people…Assad and his assistant butcher Putin have been given a strong message which they have heard…if this reduces the amount of children killed by poison gas then it was a successful mission…Bravo to the USA for their efforts and shame on the UN who has let this bloodletting continue in Syria for years and has done nothing to stop it?Recommend

  • numbersnumbers
    Apr 23, 2017 - 10:38PM

    Second try!
    All can go to Wikipedia and search for “Use of Chemical Weapons in Syrian civil war” to see details of gas attacks on civilians, along with more than 90 supporting references!
    All can go to Wikipedia and search for “List of Syrian civil war barrel bomb attacks” to see how Team Assad slaughters civilians!Recommend

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